Himachal Pradesh High Court
Krishan Chand vs Rajendar Kumar And Another on 18 November, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.R. No. 28 of 2011.
.
Date of decision: 18.11.2016
Krishan Chand ...Petitioner/Plaintiff
Versus
Rajendar Kumar and another ..Respondents/Defendants.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
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Whether approved for reporting ?1 No
For the Petitioner : Mr. Suneet Goel, Advocate.
For the Respondents : Mr. Varun Rana, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
This revision is directed against the judgment and decree dated 30.10.2010 passed by learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, H.P. whereby the summary suit filed by the plaintiff/petitioner (hereinafter referred to as the 'plaintiff') under Section 6 of the Specific Relief Act, came to be dismissed.
2. The plaintiff filed a suit for recovery of possession on the ground that he is owner in possession of the land comprised in Khasra No. 362/1 measuring 97 sq.mtrs. out of the total land measuring 287 sq. mtrs. It is not in dispute that earlier to this petition, the plaintiff had filed a Civil Suit No. 117 of 1995 which was decided on 30.8.1999 wherein one of the respondent Darshan Kumar had made a statement before the Court on 24.2.1996 wherein he admitted that the plaintiff is in possession 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes ::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 2 and the suit was accordingly compromised. It was claimed that the defendants had raised construction over the portion of the suit land by .
raising 2.3 meters wide wall and had forcibly dispossessed the plaintiff from the suit land. This plea was based on adverse possession.
3. The defendant/respondent No.1 filed written statement wherein preliminary objections regarding maintainability, cause of action, of plaintiff having not come to the Court with clean hands and having suppressed the material facts were raised. On merits, it was averred that rt the plaintiff had earlier filed a suit but it was claimed that the same was dismissed. It was further alleged that after 1996 there had been a family partition between respondents No. 1 and 2 and the parties thereafter were in possession of their respective shares. It was contended that the plaintiff being close relative was residing with the consent and permission of the defendant and being a licensee, he has no right, title or interest either in the house or in the suit land as he was in permissive possession of the same.
4. On 11.10.2007, the learned trial Court framed the following issues:
1. Whether the plaintiff is in possession of Khasra No. 362/1, measuring 97 sq.mt. out of land measuring 287 sq.mt. for last more than 32 years as alleged? OPP
2. If issue No.1 is proved in affirmative, whether the plaintiff has become owner of land comprised in Khasra No. 362/1 by way of adverse possession as alleged? OPP
3. Whether the defendant No.1 has illegally covered land measuring 20 sq.mt. by construction of wall of 2.3 mtrs. in width and has dispossessed the plaintiff as alleged? OPP ::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 3
4. Whether the plaintiff is entitled to recover vacant possession of land measuring 20 sq.mt. denoted by Khasra No. 362/2 being part of Khasra No. 362/1 as alleged? OPP .
5. Whether the suit is not maintainable? OPD
6. Whether the plaintiff has no cause of action to maintain the suit? OPD
7. Whether the plaintiff has not come with clean hands before this Ld. Court and has suppressed the material facts? OPD of
8. Whether the plaintiff is in permissive possession of the suit land as alleged? OPD
9. Relief.
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5. The learned trial Court after recording the evidence and evaluating the same dismissed the suit. It is against this judgment and decree that the petitioner/plaintiff has filed the instant revision before this Court that the learned Court below has erred in ignoring the compromise entered into between the parties in the earlier suit wherein the claim of the plaintiff had been admitted by defendant No.2 (Ex.PW-6/A and the statements of the parties given in the earlier suit (Ex.PW-6/B and Ex.PW-
6/C), respectively. In addition thereto, it is submitted that the learned Court below has mis-appreciated and misconstrued the evidence on record more especially the statement of PW-4, mother of the defendants, who has categorically stated that her husband Sh. Roshan Lal had given land to the plaintiff, who about 35 years back had raised a house thereupon and, therefore, the petitioner had otherwise become owner of the suit land.
I have heard learned counsel for the parties and gone through the record of the case carefully.
::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 46. A perusal of the plaint would indicate that the pleadings qua adverse possession are wholly deficient and are contained in para-3 of .
the plaint, which reads thus:
"3. That the plaintiff is in possession of the Khewat No. 73 min, Khatauni No. 104 min, Khasra No. 362/1 measuring 97 sq.mt. out of the total land measuring 287 sq.mt. and the said possession of the plaintiff is continuous, peaceful, hostile and of uninterrupted from the last more than 32 years and has become owner by way of adverse possession."
7. rt Adverting to the facts, it would be noticed that the plaintiff while appearing as PW-1 has stated that he has constructed his house 32 years ago over the land given to him by Roshan Lal (father of the defendants). He had earlier filed a suit in the year 1995 against Darshan Kumar which was compromised and Darshan Kumar had deposed that 97 sq.mt. of land was given by his father to the plaintiff. He further stated that in September, 2006, the defendant had raised a wall and had further dispossessed the plaintiff.
8. Now, in order to find out whether the petitioner/plaintiff in fact is in possession of the land, then in case the revenue records are adverted to, it would be noticed that his possession does not find recorded in the latest jamabandi Ex.P-2 for the year 2003-04, which in fact shows the name of defendants No. 1 and 2 to be in possession of the suit land, whereas, in the column of ownership, the names of Kamal Kumar, Rajender Kumar etc. have been recorded. The defendants have been recorded in the column of possession as 'gair marusi'. Vide mutation No. 402, the land has been mutated in the names of Darshan Kumar and Rajender Kumar. The learned trial Court is right in observing ::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 5 that in case the plaintiff was in possession of the house for the last 32 years as alleged by him, then he ought to have been recorded in the .
column of possession.
9. It would be noticed that the plaintiff is banking upon the compromise Ex.PW-6/A and statements recorded Ext.PW-6/B and Ex.PW-6/C to claim that he is owner in possession of the suit land.
of However, at the same time he is also claiming himself to be in adverse possession of the land.
10. rt The plea of ownership simpliciter is based on the concept of title which one may have acquired through various sources like succession, gift, will, sale, exchange etc. where one is in possession of the suit land lawfully. On the other hand, when the plea of adverse possession is projected, inherent in the plea is that someone-else was the owner of the property. (See: P.Periasami (dead) by LRs. Versus P.Periathambi and others (1995) 6 SCC 523). To establish a claim of title by prescription, that is adverse possession for 12 years or more, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period existing 12 years. Having said so, it can safely be concluded that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. (Refer: Mohan Lal (deceased) through his LRs Kachru and others versus Mirza Abdul Gaffar and Another (1996) 1 SCC 639, L.N.Aswathama and another versus P.Prakash (2009) 13 SCC 229).
11. Once, the plaintiff has raised mutually inconsistent pleas, an omnibus issue cannot be framed to determine these pleas. The suit of ::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 6 the plaintiff was not maintainable when he sought to raise pleas which were mutually destructive. The plaintiff was required to opt for either one .
of the two claims. Even in that event, the plaintiff could have only opted to set-up the plea of title because suit for declaration on the basis of adverse possession could not have been filed as this claim can only be agitated by way of defence and can be used only as a shield and not a of sword as held by the Hon'ble Supreme Court Gurdwara Sahib versus Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 in the following terms:-
rt "8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
12. Thus, once the plaintiff himself is not sure about his case and has otherwise failed to prove his possession, then no illegality, infirmity much less impropriety can be found in the judgment rendered by the learned Court below.
13. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed. However, this will not prevent the aggrieved party i.e. plaintiff from filing a regular suit establishing either his title or both over the suit property, notwithstanding the decision in the instant petition.
::: Downloaded on - 15/04/2017 21:34:49 :::HCHP 714. Needless to say that the suit, if any, and when filed by the plaintiff shall be considered strictly in accordance with the pleadings and .
evidence therein and the trial Court shall not be influenced by the findings rendered either by the trial Court or this Court in these proceedings.
15. The petition is accordingly disposed of, leaving the parties to bear their costs.
of ( Tarlok Singh Chauhan ) November 18, 2016. Judge.
(GR) rt
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